The New World: The “death” of piracy in New Zealand

By Harry Cui

The death of digital content piracy has been foretold. The story is inextricably woven with our expectations, a simple tale of good and evil. Akin to the actions of King George I, governments will not enforce laws retroactively and grant clemency to those who have committed wrongs in the past. However, future offenders will be given no quarter and severely punished – three strikes and you’re out. We are told that online piracy surely ends at the hands of Parliament, by way of laws and regulation. In theory, piracy will capitulate to the pressure of the law. In reality, piracy succumbs to a slow and natural slumber.

Dead men tell no tales – harsh and ineffective laws

The laws implemented by Parliament to combat the prevalence of piracy was characterisedby the word ‘unsuccessful.’ The Oxford dictionary primarily defines success as the accomplishment of an aim or purpose. Interestingly, the Copyright (Infringing File Sharing) Amendment Act 2011 was not listed as one of the alternative definitions.

The amendment to the Copyright Act, dubbed the “Skynet”, enables copyright owners to issue notice to Internet Service Providers (ISPs) about suspected copyright offenders. If an infringing internet user continues to offend after accruing three notices, the copyright owner is granted the opportunity to bring the case to the Copyright Tribunal. The Tribunal may issue a maximum pecuniary fine of $15,000 and suspend the account holder from using the internet for a period of 6 months if approved by an Order in Council.

It has been 4 years since a case was brought to the Copyright Tribunal. The probability of winning the lottery is perhaps higher than the chance of being brought in front of the Copyright Tribunal for pirating. Since the introduction of the amendment in 2011, only 23 cases have been heard.

The Act was largely defeated by its internal mechanisms. The implementation of the “three strikes rule” was hindered by the cost and relatively small benefit of issuing notice. costs of bringing cases to the Tribunal led to the infrequency of cases which ultimately eliminated the usefulness of the amendment.

Walk the plank – conditions for the decline of piracy

Despite the Act’s lack of success, consumers in New Zealand are straying away from piracy. A recent online behaviour report indicated that only 10% of New Zealand consumers aged over 18 watches content via online piracy, which is lower than the past.To that effect, the Consumer General Manager of Vocus New Zealand, which commissioned the report, expressed that “around half of all respondents have watched something at some point in their lives that may have been pirated – however, the majority rarely or never do that nowadays”.

So, if the laws prohibiting piracy were so ineffective, what changed?

The need for piracy in New Zealand is slowly eroding with the advent of services which are affordable and accessible. Bold claims such as “Netflix is killing piracy” litter the internet. The consumer entertainment experience is changing. Consumers in New Zealand have more access to previously unavailable content and services – bringing greater competition to the industry. The conditions for the decline of piracy can be summed up into 4 categories: accessibility, affordability, experience and convenience. Each can be explored through the microcosm of film and television.

• Accessibility

Although New Zealanders have access to fewer options due to licensing issues, the number of available shows is comparable to the rest of the world since the introduction of Netflix in 2015.

• Affordability

In the past, SKY’s monopoly over film and television inflated prices. Competition from streaming services has since forced the service to cut down on its price.

• Experience

It’s difficult to replicate the cinema experience. New films are released with “3D” and “IMAX” options which adds to an irreplaceable experience.

• Convenience:

The now popular term “on-demand” conceals the unfortunate truth that options in the past were the antithesis of “on-demand”.

Batten down the hatches – conditions for the re-emergence of piracy

Although piracy is declining, it is not dying. Dying implies a finality – an end. The rate at which piracy continues will inevitably wax and wane. Importantly, the conditions for the decline of piracy are also the conditions for its rise.

In the world of streaming services, the monopolistic control of Netflix broadened the number of available options. A monopoly does not necessarily damage the consumer experience provided the same quality of service is maintained and improved at a reasonable price. Conversely, competition does not necessarily enhance the consumer experience.

It is not difficult to predict that the continued growth of exclusivity will cause some to unfurl the black flag. With the introduction of Disney’s new streaming service, the word “exclusive” will dominate the discourse for the preferred platform. The essence of convenience will eventually be lost due to licensing – to watch all the notable films and TV series on-demand, a person may be required to subscribe to multiple services which offends most of the principles that led to piracy’s decline.

If piracy does re-emerge, it is unlikely Parliament will be able to directly curtail it without the use of draconian internet laws. New Zealanders are gradually becoming more tech savvy by finding new ways to mask their Ips, and the imminent Copyright Act review seeks to broaden fair use policies. These factors accentuate the reasons for the potential failure of future laws to curb piracy.

“You wouldn’t steal a car...” 

Industries have ceased to appeal to the consumer’s morality and (lack of) intelligence. Bizarrely, the provision of a quality service at an affordable price seems to be the best way to combat piracy. It’s naïve to assume piracy will be gone forever – and when it returns, copyright holders should look to service providers rather than Parliament to address the wider issue.

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